Comments on Draft Kennel Legislation – 1/7/08

 

By John Yates

Executive Director

The American Sporting Dog Alliance

 

Dear Members of the Pennsylvania Dog Law Advisory Board:

 

The American Sporting Dog Alliance (ASDA) is a Pennsylvania-based organization representing sporting dog owners and professionals nationwide, including many Pennsylvanians. We are offering our analysis of draft kennel regulations that now are before the Pennsylvania Dog Law Advisory Board and will be published in The Pennsylvania Bulletin in early 2008.

 

We wish to commend Pennsylvania Gov. Ed Rend ell and the state Department of Agriculture for listening to the concerns of sporting dog owners during the public comment period on the initial version of this legislation a year ago. We applaud many of the changes that have been made in the draft version in response to our concerns.

 

However, we also believe that the 2008draft legislation has many serious problems of both a substantive and technical nature. We also see some serious constitutional issues that must be corrected.

 

Our major concern is that ASDA simply doesn’t see the need for additional legislation. In the Bureau of Dog Law Enforcement’s most recent report to the Legislature, documents show that, in the year 2006, 598 kennel licenses were revoked, 23,058 citations were issued, 17,796 dogs were seized and impounded, and $355,920 in fines were collected for alleged violations of the kennel law.

 

Those numbers clearly and dramatically show that Pennsylvania’s current kennel laws are working. In addition to those numbers, dogs in Pennsylvania are protected by strong animal cruelty laws, and many commercial kennels also are regulated by very stringent federal kennel regulations. Moreover, Gov. Rendell has announced several times that enforcement of Pennsylvania laws had substantially increased last year, and thus 2007 statistics are expected to be even more dramatic.

 

Those statistics alone completely refute the alleged need for additional regulation. They also clearly substantiate the concern of many dog owners that further regulation will destroy this important part of Pennsylvania’s agricultural and small business economy, and place very unfair burdens on private dog ownership as well.

 

In testimony on last year’s proposed regulations, Department of Agriculture officials testified that not a single one of Pennsylvania’s 2,600 licensed kennels would pass the proposed regulations. Even under the current regulations, the 2006 statistics show that kennel licenses were revoked for almost one-quarter of Pennsylvania’s kennels.

 

This tells us clearly that the intention of the legislation was not to raise the bar of kennel standards in the Commonwealth, and not to eliminate only non-compliant kennels. Those facts strongly suggest that the intention was to shut down the vast majority of kennels, and to use governmental power to forcibly impose an activist animal rights philosophy on private citizens in Pennsylvania. This apparent intention makes dog and kennel owners especially wary of the vastly strengthened police powers contained in the 2008 draft version of this legislation.

 

Please also take note of the sheer volume and complexity of these draft regulations. The current kennel law is roughly 40 pages long. The draft legislation is 80 pages long in PDF format, and 104 pages long in Microsoft Word format…and this doesn’t include several sections that are not being amended! It is unrealistic to expect dog owners, kennel owners and even enforcement officers to absorb, understand and remember the details of such a cumbersome document. It takes detailed line-by-line analysis and diagramming to even see which sections apply or do not apply to various classes of kennels. In a best-case scenario, it is a very confusing document. At best, we see its length and structure as creating confusion if not chaos.

 

A final but extremely important general concern is that the legislation would take effect immediately upon being signed into law. Because of the complexity of the legislation, it is essential that a “grace period” will be provided to allow kennel owners adequate time to come into compliance. ASDA believes that this “grace period” should be at least six months, to allow adequate time for kennel owners to make changes, perform structural work on their facilities, to secure financing for the work, to secure required municipal code approvals, and to actually perform the work given seasonal conditions that may make construction impossible. The lack of a “grace period” is, in effect, setting up kennel owners to be noncompliant, thus resulting in license revocations.

 

The focus of our comments in the remainder of this document will be on specific parts in the draft legislation.

 

There is a contradiction between the first and last sentences of the definition of a boarding kennel. The two contradictory sentences read: “Any kennel available to the general public where dogs are housed or trained for compensation by the day, week or a specified or unspecified time…This term does not include dog grooming or dog training.” As you can see, the first sentence says that boarding kennels include kennels that trains dogs, while the last sentence excludes dog training from this definition. ASDA believes that dog training is a valid part of the definition of a boarding kennel, and suggests removing the words “dog training” from the last sentence to make the wording clear and consistent.

 

The definition of a “commercial Kennel” also is very problematic. ASDA agrees that breeding kennels that sell to pet stores or dealers should remain part of this definition, and that the definition of these kennels as transferring “a total of at least 60 dogs” a year is appropriate. However, the number of litters a year is not realistic and would adversely and unfairly affect many high quality hobby breeders who are serious about improving show, companion, performance and sporting breeds. We suggest replacing the proposed “five litters” definition with “15 litters” a year.

 

In addition, the definition of a “commercial kennel” should not include the word “keeps.” The draft definition reads “or keeps or transfers a total of at least 60 dogs…in a calendar year.” This number is unrealistically low, in that many very small boarding and training kennels would unfairly fall into this classification. For example, a very small home business of a boarding kennel with only a 10-dog maximum capacity would exceed this standard in less than two months, assuming full capacity and an average length of stay of one week (a typical time span for people who board their dogs while on vacation). In addition, many part-time kennels that train or handle dogs in competition on a very small scale would fall under this definition. Removing the word “keeps” would eliminate these problems.

 

ASDA suggests the following definition of a “commercial kennel” to eliminate these problems: “A breeding kennel that sells to a dealer or pet shop kennel, or that transfers at least 60 dogs in a calendar year, or that produces 15 litters or more in a calendar year.”

 

The definition of “primary enclosure” is very confusing. In the definition section of the legislation, it appears to be a description of a dog house or sleeping compartment, although most dog houses allow a dog free egress and ingress, which does not “restrict…a dog’s ability to move.” A dog simply can walk through the door of its doghouse. The kennel run itself is what restricts a dog’s ability to move freely beyond its perimeters.  Yet, the definition excludes kennel runs that are attached to a house (we assume it means a dog house, rather than a dwelling for humans) or a cage (a sleeping area of an indoor/outdoor kennel could be construed as a “cage.”).  Moreover, the regulations for “Class B” license additional requirements (Section 207 parts h. and i.) further this confusion, by seemingly applying to doghouses and sleeping quarters in some requirements, and to kennel runs in others.

 

Here is a much more clear definition of a primary enclosure that is contained in federal law: “Primary enclosure means any structure or device used to restrict an animal or animals to a limited amount of space, such as a room, pen, run, cage, compartment, pool, or hutch.”

 

Under the definition of establishment, subsection 2 excludes “training for

an event such as a field trial, hunting event or dog show.” In other words, training areas are excluded. However, actual dog shows, field trials and hunting are not excluded. It means that these activities would be subject to kennel licensure and inspections. We assume that this error was unintentional. In any event, it should be corrected so that field trials, dog shows and hunting are excluded from licensing requirements.

 

The definition of “seizure” poses some constitutional problems. It says: “ ‘Seizure.’ The act of taking possession of property for a violation of law or the taking or removal from the possession of another. The term shall not include the taking of ownership of property.” We regard the last sentence in this definition as an attempt to evade constitutional requirements that prohibit the taking of private property without due process and fair compensation. Denying the right of possession of private property is a defacto taking of that property, without provision for due process in the courts and fair compensation.

 

Section 200 applies to individual dog licenses sold by the counties. Subsection e.1. is about electronic records. It requires each county to submit and regularly update an electronic data file of all dog license holders to the Bureau of Dog Law Enforcement. We find this troubling, as we can find no legitimate reason to violate the privacy of several hundred Pennsylvanians. It appears to us that this is a “fishing expedition” by the Bureau to create defacto state registration of all dog owners. This subsection should be removed.

 

Section 206 of the draft legislation defines the various categories and classifications of kennels. However, the legislation removes the actual license fees that would be charged to people who apply for each class of license. These fees are contained in the current dog law. We feel that it is vital to continue to include the fees for licenses, as failing to do this gives a blank check to the Bureau to arbitrarily create and/or increase license fees without appropriate legislative oversight and accountability. Fees should be set and changed only through an act of the Legislature. Our concern is that license fees could become prohibitively high, while leaving kennel owners no avenue of redress.

 

Also under Section 206, very high ($500-to-$1,000 per day) fines can be assessed for noncompliance with licensing requirements. While we support the allowance for the Secretary to waive the fines, we also believe that the fines are too high for anything except a flagrant violation of licensing requirements. A single litter of puppies can cause a properly licensed kennel to be out of compliance, or a kennel that is not required to be licensed today can be subject to licensure tomorrow through the purchase of a single dog. We believe kennels should be given a formal “grace period” of no less than 30 days to come into compliance with the proper category of licensure. We also believe that even temporary noncompliance or simple carelessness can subject a kennel owner to truly devastating fines, liens and the potential loss of the market value of real estate for relatively minor violations that have no bearing on the quality of care given to dogs in that kennel. Payment of all fines and penalties is a requirement for licensure. If the kennel owner were not financially able to pay these fines quickly, he or she would be subject to the confiscation and possible euthanasia of his or her dogs. In this case, the punishment clearly does not fit the crime. Bonding requirements for seized dogs would be appropriate only if the dogs are found to be in poor condition or in danger.

 

In Section 207, subsections b. and c. of the current law are not included or repealed in the draft legislation. Thus, we assume that they still stand and would remain in effect. Section b. covers kennel maintenance and sanitation, and section c. covers required records. We support these sections. However, we also think that a legislative review should be required of any maintenance and sanitary “codes promulgated by the secretary through regulations.” Any regulations should be published in the Pennsylvania Bulletin and, at the least, approved by the Regulatory Review Committee of the Legislature. If this oversight is not provided, kennel owners would be justified in fearing that the kind of stringent and prohibitive regulations that were contained in the 2006 draft of the regulations would be repeated through administrative edict, and that legislative oversight and accountability thus would be circumvented.

 

Under subsection g. of Section 207, a plan for exercise of all dogs in boarding kennels and kennel classifications I-through-VIII must be developed and approved by the kennel’s attending veterinarian. We fully agree that proper exercise is vital for the health and well being of all dogs. However, we strongly oppose requiring veterinary approval when there is no clear standard for veterinarians to use in granting or denying approval. In essence, each veterinarian in Pennsylvania would formulate his or her own personal standards, and these might differ widely from each other. These differences of opinion thus would impose arbitrary and capricious requirements for exercise needs, have little to do with the actual exercise given to dogs because there is no mechanism to enforce the plan (in fact, it is unenforceable, unless the Bureau is prepared to assign a full-time dog warden to each kennel to observe what happens), and would subject every kennel owner to unfair and unequal treatment under the law. As such, we see this requirement as both pointless and burdensome. It serves no purpose, and adds to the burden on kennel owners.

 

This section also requires a notice with information about each dog to be affixed to the front of each “cage,” or to be in the possession of the kennel owner if “cages” are not used. There is no definition of the word “cage” in the draft legislation, and different people might interpret this to mean a kennel run, doghouse, or even a sleeping area in the owner’s home. It would be difficult to attach any paper notice to an outdoor facility, unless it was laminated for weather protection. We also see this requirement as serving no essential purpose, while burdening the kennel owner.

 

Subsection three requires all kennels to have smoke alarms installed. Thus, this includes outdoor kennels. A smoke alarm is meaningless for an outdoor kennel.

 

Subsections H and I impose additional requirements on Class B kennels, which essentially means commercial breeding kennels. Many of these requirements are important and reasonable, and ASDA strongly supports them. It also is necessary to add that all of these commonsense requirements already are in place under current regulations, and this draft legislation is almost entirely redundant.

 

However, some provisions are quite troublesome.

 

Subsection vii. Requires kennels to “Provide sufficient space to shelter all the dogs housed in the primary enclosure at one time.” The term “sufficient space” is ambiguous and allows for arbitrary and capricious interpretation.

 

Subsection viii requires kennel owners to “Provide potable water at all times, unless otherwise directed by a veterinarian.” From a management point of view, this requirement is impossible. Dogs often spill or dirty their water, and in very cold weather ice can form very quickly. This problem could be solved by requiring kennels to provide clean potable water twice a day under all conditions, and more often if there is hot weather. In actual practice, this requirement would assure that most dogs have access to clean potable water for most of the day, and many will have access for the entire day and through the night. There is no evidence that would justify that dogs always have immediate access to water under normal conditions.

 

In subsection 3, the size of the primary enclosure for litters of puppies should be set by a clear formula in the legislation and should not require veterinary approval. This is not a medical issue if standard industry practices are followed.

 

In subsection 4, the requirement that puppies under 12 weeks of age must not be housed with unrelated adult dogs is unreasonable if the breeder raises the puppies inside his own home. In a home environment, dogs of various ages may be present and frequent human supervision is available. A home environment is the best place to raise puppies, and socialization with other dogs and people is vital to a puppy’s development.

 

The temperature requirements should apply only to indoor kennels, and not to indoor/outdoor or outdoor facilities. Well-insulated houses, natural airflow and shade adequately meet the needs for healthy and acclimatized dogs. There is no evidence that a problem actually exists to justify regulation in this area.

 

Subsection 9: outdoor and indoor/outdoor kennels usually are made of chain link or weld wire fencing, and floors may be gravel or crushed stone. These surfaces allow moisture to freely pass through.

 

Cleaning requirements are specified in subsection 14. The legislation requires cleaning kennels daily “or as often as necessary.” This is vague and subject to arbitrary interpretation, and should be clearly defined.

 

In Subsection 15, the requirement that a piece of paper be attached to the front of the cage is not workable for outdoor facilities, and the term “cage” has not been defined.

 

ASDA understands that euthanasia is inherently controversial, but we believe that the ethics of this issue should be left to the choice of the kennel owner as long as humane procedures are used to cause minimal pain to the animal. Thus, we must oppose the requirement in the legislation that only veterinarians are able to euthanize a dog. This contradicts standard practice in kennels and on farms for thousands of years, and we simply do not believe that people who choose to make their living raising dogs lack compassion for their suffering. In fact, taking an injured or seriously ill dog to a veterinarian’s office might significantly prolong the animal’s pain and suffering, and its owner must retain the option to take the most merciful course of action. In some instances, such as when roads conditions are dangerous, or after hours and on Sundays and holidays, suffering may be prolonged for many hours before a veterinarian can be located and reached. In addition, this requirement often would be unenforceable. A kennel owner who chooses to violate this provision simply would claim that a dog died of natural causes, and only an autopsy could disprove this claim.

 

The formula for determining space requirements in subsection I reads like a problem solving exercise in math class. It is needlessly complicated and will result in confusion. It should be replaced with a clear minimum space requirement based on the size of the dog and the number of dogs in the kennel enclosure.

 

Subsection vii prohibits intact male and female dogs from being exercised together. This contradicts a previous provision that allows them to be kept in the same primary enclosure (subsection 4 above). That subsection allows males and females to be kept together unless the female is in heat (except when she is being bred). It is reckless and irresponsible to prohibit management practices that would allow the kennel owner (who knows the individual dogs in a kennel) from determining the compatibility of kennel mates. There is far less danger of fighting if a male dog is kept with a female dog, and a far greater probability of fighting in same-sex housing or exercising. Prohibiting males and females from being exercised together serves no purpose. Virtually all kennel owners are highly skilled at detecting heat cycles, and there is almost no chance of unwanted pregnancies.

 

Subsection 7 is a requirement that only a veterinarian is permitted to administer a rabies shot. This requirement serves no purpose, and is punitive to kennel owners. The current system allows kennel owners to become state certified to administer their own rabies shots. The current program is working perfectly! There has not been a single documented case of canine rabies in a licensed kennel in many years. In fact, on Sept. 7, 2007, the federal Centers for Disease Control and Prevention, an arm of the federal government, “formally declared the elimination of the type of rabies previously found in dogs in the United States,” according to a press release from the agency. “The elimination of canine rabies in the United States represents one of the major public health success stories in the last 50 years," stated Dr. Charles Rupprecht, Chief of the CDC Rabies Program. The rabies program is working and, if it ain’t broke, please don’t fix it. There is no evidence that requiring veterinarians to administer rabies shots will be more effective than the current program of vigilance. In fact, there is not one shred of evidence that a problem exists. This requirement is a thinly veiled attempt to use regulations punitively, by greatly increasing the costs of kennel owners and demands on their time, to no logical purpose.

 

Also, rabies vaccination certification for owners of boarding kennels and K1-through-VIII kennels is not addressed in the legislation. ASDA maintains that properly certified kennel owners should continue to be permitted to give their own rabies vaccinations to dogs that they actually own. There is no evidence to suggest that the current program is not working, or that any problems exist in it. This issue must be addressed in the legislation.

 

Subsection 8 requires every dog in a commerical kennel to be examined annually, and at each pregnancy. There is no justification for this requirement. State dog wardens are thoroughly trained to recognize signs of disease, poor nutrition or ill health, and the draft legislation gives them the power to order a veterinary examination for any dog that is believed to need medical evaluation or care. A blanket requirment for veterinary examinations of all dogs in a commercial kennel thus is completely unjustified and must be seen as punitive. It would make great demands on a kennel owners time, and would be very expensive, while serving no legitimate purpose.

 

In Section 209, various restrictions are placed on Pennsylvania kennels about doing business with unlicensed out-of-state dealers. We can see no valid purpose in this prohibition. Health would not be a concern. Under the legislation, no dog can enter Pennsylvania without a health certificate and rabies certificate signed by a licensed veterinarian. This requirement also places Pennsylvania kennel operators in the impossible position of being responsible for the actions and promises of another person, without having the legal authority or ability to verify licensure. It also prohibits an out-of-state dealer from simply transporting dogs through Pennsylvania, even if his operation is fully legal in his home state and in the state that will receive the dogs. This also clearly is an unconstitutional infringement on interstate commerce. The U.S. Constitution reserves the power to regulate interstate commerce to the federal government, and forbids states from interference.

 

Section 211 A. 1-4 prohibits issuing a kennel license to anyone who has made a misrepresentation or misstatement on an application, or to a Bureau employee, or who has failed to comply with or violates the Act or regulations promulgated under the Act. This prohibition is appropriate if someone knowingly commits these acts. However, it is far too stringent if the situation was accidental or based on a misunderstanding of the requirements of this extremely complicated legislation. It also refers to regulations promulgated under the kennel law. As noted earlier, it is essential for these regulations to be published in The Pennsylvania Bulletin before they are enforced, and to be subject to the approval of the Regulatory Review Committee. This is essential to make sure that the Department of Agriculture remains accountable to the Legislature, and that the Legislature remains accountable to the electorate.

 

It also is essential that the Bureau of Dog Law Enforcement is required to notify all licensed kennel owners and other interested parties of any impending changes in the regulations, in order to allow adequate time for comment on the regulations and particpation in the process. Regrettably, we must note that the Bureau failed to do this a year ago, when the first draft version of this legislation was published, and this was correctly perceived as a blatant attempt to exclude regulated parties from the process. ASDA maintains that any kennel legislation is fatally flawed if the Bureau is not required by law to promptly notify stakeholders when regulations are proposed.

 

Because of the inherently controversial nature of animal issues, ASDA also strongly believes that any future regulations should be in the form of an amendment to the dog and kennel law, subject to full legislative review and voting, and requiring the Governor to formally sign it into law or have a veto overrriden by the Legislature.

 

Section 211 A. 6 forbids issuing a kennel license to anyone who has been convicted of a felony of any kind. We feel that this is unnecessary and overly stringent, unless it can be directly shown that the crime is related to keeping animals or operating a kennel business. For example, someone could have been convicted of a drug felony as a young adult, but completely changed his or her life in later years. When a criminal sentence has been discharged, the convicted person has paid his or her debt to society.

 

Section 211 A. 8 denies a kennel license to someone who is not in compliance with county and municipal laws or ordinances pertaining to a kennel. The Commonwealth has no business interfering in local matters, and the wording of this text, in combination with other language later in the legislation, would place the burden of proof on a kennel license holder. This clearly is unconstitutional, and blatantly contradicts the American system of justice.

 

In subsection C. i., a person is supposed to be given a reasonable amount of time to comply with the Act and regulations. The legislation defines a reasonable amount of time as 15 days. If a kennel must make significant structural changes to comply, 15 days is a very unreasonable period of time. For example, if the kennel is subject to zoing approval, it would take longer than 15 days simply to get zoning approval to make the changes. This timeframe also fails to take into account weather conditions at various times of the year that may make construction impossible, such as during a hard winter. To be reasonable, the timeframe must be contingent on the amount and type of work that must be completed, regulatory hurdles that would delay construction, and weather that would make construction difficult or impossible.

 

Subsection vii authorizes the “forfeiture…without compensation” of all dogs, in excess of 25,  in a kennel that fails to come into compliance within 15 days. This clearly is a denial of constitutional rights, as the license holder would be denied due process under the law, as no redress in the courts is provided, and also would be denied fair compensation for government essentially exercizing powers of eminent domain over private property. It also fails to meet the legal requirement of eminent domain actions, in that the taking of private property by government is permissable only when a compelling public interest can be shown.

 

Section 218 A. and B. clearly transgress the constitutional authority of state government by allowing inspections of private property and records of allegedly unlicensed kennels without a warrant. Whether or not a kennel is unlicensed is a presumption based on the opinion of the investigating officer, who has no reasonable grounds to reach that conclusion prior to an inspection. This provision essentially allows Bureau officials unrestricted access to the property and records of everyone who owns a dog. The Bill of Rights guarantees all Americans protection against searching property and records in the absense of probable cause to believe that a law has been broken.

 

Section 218 C attempts to define probable cause, but does so in a way that clearly is illegal and unconstitutional. The legislation states that there will be probable cause to inspect private property and records if the “inspection, examination or seizure is pursuant to a general administrative plan to determine compliance with this act.” Constitutional rights are individual rights, and not group rights. A plan to inspect the group of dog owners or possible kennel owners fails to meet the test of probable cause to believe that an individual is in violation of the law. ASDA maintains that no possible good from these actions can come close to the importance of destroying constitutional limits on the power of government, or the violation of constitutionally guaranteed human rights.

 

Section 220 b. outlines procedure that will be followed when a dog warden attempts to inspect a kennel when the kennel owner is not home. The dog warden is mandated to give the kennel owner 24 hours in which to be present to allow for an inspection of the kennel. If the warden returns within 24 hours and does not find the owner at the kennel, this will be considered to be a refusal to allow inspection. This is grounds for revoking a kennel license and imposing penalties against the owner. This requirement is completely irrational when it is applied to the vast majority of licensed kennels, and probably to all kennels on occasion. A large majority of licensed kennels are not operated as full-time businesses, and their owners must go to jobs during normal business hours. This often would make it impossible for these license holders to be present at the kennel at the convenience of the dog warden. Some people who hold jobs may not be allowed to take time away from their employment without notice, others may have professional commitments that cannot be broken, and still others might be traveling for business. In other instances, many professional dog trainers and handlers routinely travel away from home for days or weeks at a time, depending on the needs and realities of their business. Inspections are vital, but they also must be respectful of the legitimate needs of kennel owners and their business commitments.

 

Under Section 301 B. 1, housing in barrels is prohibited. In general, ASDA strongly supports this prohibition. However, a barrel is defined by its shape. Some of the most highly regarded, weather resistant, insulated and expensive dog houses on the market are manufactered in the shape of a barrel. In terms of protecting dogs, these are some of the best houses on the market, if not the best. Yet their use is prohibited by this legislation.

 

Thank you for listening to our concerns.